© A. Kuklik. LAW OF EVIDENCE LEC – 2016 Winter Week 8 Professor Elisabeth Peden Miiko Kumar Alex Kuklik.

Admissions PART 3.4 - ADMISSIONS KOP Chapter 9 Section 81 - Hearsay and opinion rules: exception for admissions and related representations Section 82 - Exclusion of evidence of admissions that is not first-hand Section 83 - Exclusion of evidence of admissions as against third parties Section 84 - Exclusion of admissions influenced by violence and certain other conduct Section 85 - Criminal proceedings: reliability of admissions by defendants Section 86 - Exclusion of records of oral questioning Section 87 - Admissions made with authority Section 88 - Proof of admissions Section 89 - Evidence of silence generally Section 89A - Evidence of silence in criminal proceedings for serious indictable offences Section 90 - Discretion to exclude admissions

© A. Kuklik. Admissions PART 3.4 - ADMISSIONS Criminal Procedure Act 1986 s 281 Edwards v R (1993) 178 CLR 193 R v Zhang [2000] NSWSC 1099 (KOP [9.50] and [9.80]) Kelly v The Queen [2004] HCA 12; 218 CLR 216 (KOP [9.70]) R v Moffatt (2000) 112 A Crim R 201 (KOP [9.90]) R v McLaughlan (2008) 218 FLR 158 (KOP [9.100]) R v Helmhout (2001) 125 A Crim R 257 [9.120] Foster v The Queen (1993) 113 ALR 1 (KOP [9.140]) R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150]) Em v the Queen [2007] HCA 46 (KOP [9.160] Petty and Maiden v The Queen (1991) 173 CLR 95 (KOP [9.180])

© A. Kuklik. Admissions Sections 82 and 83 essentially create another exception to the hearsay and opinion rules, for representations that are admissions. The rest of the sections in Part 3.4 create rules regarding the admissibility of evidence of admissions generally. Even if s 82 allows admission of the representation, if it breaches one of the restrictive sections (several of which deal with admissions made during ‘official questioning’), it will not be admitted. So what is an admission?

© A. Kuklik. Admissions "admission" means a previous representation that is: (a)made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person’s interest in the outcome of the proceeding

© A. Kuklik. Admissions "representation" includes: (a)an express or implied representation (whether oral or in writing), or (b)a representation to be inferred from conduct, or (c)a representation not intended by its maker to be communicated to or seen by another person, or (d)a representation that for any reason is not communicated.

© A. Kuklik. Admissions Why do admissions provide an exception to the hearsay and opinion rules? It is thought that a person who says something against his/her own interest is less likely to be untruthful, and therefore, although the representation is hearsay, it is likely to be more reliable.

© A. Kuklik. Admissions 81 - Hearsay and opinion rules: exception for admissions and related representations (1)The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a)that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission.

© A. Kuklik. Admissions Example: D admits to W, his best friend, that he sexually assaulted V. In D’s trial for the sexual assault, the prosecution may lead evidence from W: (a)that D made the admission to W as proof of the truth of that admission, and (b) that W formed the opinion that D was sane when he made the admission.

© A. Kuklik. Admissions An admission does not have to be "l killed X". It can be any acknowledgement of some relevant fact that tends to establish guilt or liability. For example: if a body was found at a particular pub, a statement by D that she was at the pub on the night in question would be an admission because it is circumstantial evidence of her guilt. Any acknowledgement of some relevant fact that tends to establish guilt or liability would be an admission Remember the definition of previous representation - an admission may be inferred from conduct from which an admission might reasonably be inferred (doesn’t have to be words) – e.g. inferred from running away? (as recounted by witness)

© A. Kuklik. Admissions An admission which, on its face, is exculpatory may be an admission if relied upon as constituting an implied admission. For example: A lie (“I was not at the pub, I was at the movies") which is on its face exculpatory may be an implied admission if used to show a consciousness of guilt (in circumstances where you have other evidence that clearly shows he/she was not at the movies that night). R v Horton (1998) 104 A Crim R 306

© A. Kuklik. Admissions Types of admission Express statements. Implied or inferred admissions (consciousness of guilt). Evasive answering of questions. Silence?? (Discussed below) Petty and Maiden v The Queen (1991) 173 CLR 95 (KOP [9.180]) Failure to disclose a defence?? (Discussed below) Petty and Maiden v The Queen (1991) 173 CLR 95 (KOP [9.180]) Lies constituting an admission. Edwards v R (1993) 178 CLR 193

© A. Kuklik. Admissions Inferred admissions Edwards v R (1993) 178 CLR 193 Edwards was charged with procuring an act of gross indecency upon Williams by threats and by fear of bodily harm, during events that occurred during the transportation of a number of prisoners in a van. Williams was beaten by several prisoners in the van and Edwards promised to protect him from further bashings in return for oral sex. The only evidence in the case for the defence was that of Edwards who in examination in chief denied the offence and also denied anything but a vague, general knowledge of the events in the van. During cross- examination he admitted that he “looked over once or twice” when the beatings stopped and saw Williams crying. Towards the end of his cross- examination, after at first having denied seeing anyone touch Williams, he said that he had seen another prisoner push him. He admitted also that he heard someone say “Whoever wants a head job, just come down here.”

© A. Kuklik. Admissions Inferred admissions Edwards v R (1993) 178 CLR 193 The Judge warned the jury that it was dangerous to convict on the uncorroborated evidence of Williams, and told them that they could regard the lies told by the accused as corroborating Williams' evidence if they were satisfied that the lies were deliberate, related to a material issue, sprang from a realization of guilt and a fear of the truth, and were clearly shown to be lies by evidence other than Williams' evidence. The accused was convicted. An appeal to the Court of Criminal Appeal was dismissed. The accused then appealed to the High Court by special leave.

© A. Kuklik. Admissions Inferred admissions Edwards v R (1993) 178 CLR 193, 208 (Deane Dawson, Gaudron JJ) “There is a difference between the mere rejection of a person's account of events and a finding that a person has lied. A lie is a deliberate untruth. To conclude that a statement is a lie is to conclude that the truth lies elsewhere. In some circumstances, a finding that a person lied will necessarily involve acceptance of the contrary. However, the fact that a person has lied does not of itself establish a specific contrary proposition. Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie…When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to "convert what would otherwise have been insufficient into sufficient evidence of guilt" or as corroborative evidence.”

© A. Kuklik. Admissions Inferred admissions Edwards v R (1993) 178 CLR 193, 208 (Deane Dawson, Gaudron JJ) “When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to ‘convert what would otherwise have been insufficient into sufficient evidence of guilt’ or as corroborative evidence. But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that "if he tells the truth, the truth will convict him.”

© A. Kuklik. Admissions Inferred admissions Edwards v R (1993) 178 CLR 193 If telling a lie is to be relied upon, not merely to strengthen the case for the prosecution, but as corroboration of other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a lie of the defendant is to be relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence. The jury should also be instructed that there may be reasons for telling a lie apart from the realisation of guilt and, where that is the explanation for the lie, they cannot regard it as an admission.

© A. Kuklik. Admissions Inferred admissions Edwards v R (1993) 178 CLR 193 Here, it was difficult to regard defendant’s evidence in chief as involving a deliberate lie. Also, the lie, “if it was one, was not about the occurrence of the beatings and acts of indecency between Williams and other prisoners in the van, but about precisely what the appellant saw and heard of those events and his knowledge as to who participated in them and in what way. If the appellant had falsely denied that the events about which he was asked had occurred, that might have amounted to a lie about a material issue. And because the prosecution would appear to have relied upon the violent treatment of the complainant by others as the means by which the appellant procured the complainant's consent to the act of gross indecency, the appellant's knowledge of that violence may have been a material issue. But the matter was not put by the trial judge in this way.”

© A. Kuklik. Admissions Inferred admissions Edwards v R (1993) 178 CLR 193 Also it was clear that a motive for lying could have been ‘not wanting to be a dog’. On a proper analysis of the evidence, the appellant denied neither the occurrence of the events in the van nor his knowledge of the nature of those events. “In assessing the weight to be given to the appellant's testimony vis-a.-vis that of Williams, the jury was, of course, fully entitled to take account of any reluctance on the part of the appellant to answer questions responsively and of any variations or perceived inconsistencies between his answers. But they should not have been invited to use the evidence of the appellant either as independent evidence of guilt or as evidence corroborating the account given by Williams.”

© A. Kuklik. Admissions Fabrication of admissions Under s 88, a court may admit evidence of an admission if it is reasonably open (on the available evidence) to find that the admission was made. However, there are safeguards to deal with allegedly fabricated admissions: s 86 – deals with unsigned records of interview. s 281 of Criminal Procedure Act 1986 (NSW) - requires an ERISP (Electronically Recorded Interview of a Suspected Person) be used for an indictable offence. s 165 – Court can give a warning as to the reliability of the evidence (see 1)(a), (f).

© A. Kuklik. Admissions If the hearsay rule "does not apply" - what does that mean in practice? It means that if you are adducing evidence of an admission in the form of a previous representation (i.e. an admission made out of court), and you are adducing it to prove the truth of the admission, it would ordinarily be inadmissible by virtue of s 59 but, because of s 81, it escapes the operation of s 59 and can be admitted to prove the truth of whatever was admitted.

© A. Kuklik. Admissions 82 - Exclusion of evidence of admissions that is not first-hand Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless: (a)it is given by a person who saw, heard or otherwise perceived the admission being made, or (b)it is a document in which the admission is made. Note : Section 60 does not apply in a criminal proceeding to evidence of an admission.

© A. Kuklik. Admissions 82 - Exclusion of evidence of admissions that is not first-hand Limits exception to hearsay rule to “first-hand” evidence of admission Examples: Evidence from Sarah that John told her that Mary made an admission would not be protected by s 81 from the operation of the hearsay rule. A document which contains a representation by Sally that Ben made an admission to her would not be protected by s 81 from the operation of the hearsay rule. Further, s 60 will not side-step this protection: s 60(3)

© A. Kuklik. Admissions 82 - Exclusion of evidence of admissions that is not first-hand Examples: If you adduced the evidence for a non-hearsay purpose (i.e. to prove that witness said something), normally you could then use it to prove the truth of what the witness said (the second example is the situation in Lee v The Queen): Document (unsworn statement) contained a previous representation by Calin that Lee said "l did a job". It was admitted for a non-hearsay purpose (PIS). The original s 60 allowed it to then to be used to prove truth of what Cailin said (assuming that this was relevant). But (according the judgment in Lee,) couldn't use it to prove truth of what Lee said (which was the admission) – because this was second-hand hearsay.

© A. Kuklik. Admissions 82 - Exclusion of evidence of admissions that is not first-hand Examples: Now, due to s 60(2), s 60 applies to second hand hearsay (i.e. can use it to prove truth of what Mary, Ben or Lee said) BUT: because it is an admission (rather than a normal hearsay representation), in criminal proceedings, s 60(3) still operates to prevent it from being admissible for the purpose of proving truth of what admitter said (This means you cannot use the evidence to prove the truth of what Mary, Ben (or Lee) said. Therefore s 60 has been broadened to operate on second-hand hearsay, but not admissions in criminal proceedings – this preserves the effect of the judgment in Lee v The Queen. The limitation is again in the interests of ensuring the best evidence is before the Court, and also to provide a safeguard against unfair convictions.

© A. Kuklik. Admissions 83 - Exclusion of evidence of admissions as against third parties (1)Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party. (2)The evidence may be used in respect of the case of a third party if that party consents. (3)Consent cannot be given in respect of part only of the evidence. (4)In this section: "third party" means a party to the proceeding concerned, other than the party who: (a) made the admission, or (b) adduced the evidence.

© A. Kuklik. Admissions 83 - Exclusion of evidence of admissions as against third parties Another limitation on s 81 - it does not prevent application of hearsay rule or opinion rule to evidence of an admission in respect of the case of a third party in the proceedings. So if there is a trial with two defendants (or multi-party civil proceedings), and the prosecution/plaintiff leads evidence through a witness that D1 made an admission. Due to s 81, hearsay rule will not apply to that evidence against D1. But if you want to use it against D2, hearsay rule will still apply. This is unless D2 consents. But if D2 consents and wants to rely on parts of the admission, the entire admission will be admissible both for and against him/her.

© A. Kuklik. Admissions 84 - Exclusion of admissions influenced by violence and certain other conduct (1)Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a)violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or (a)a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

© A. Kuklik. Admissions 84 - Exclusion of admissions influenced by violence and certain other conduct Section 84 is concerned about voluntariness of admission - if admission not voluntary (because induced by violence e.t.c.), it should not be admitted. Only applies if party against whom admission is adduced (admitter) has raised an issue about whether its making was so influenced. If admission is being adduced against defendant, the burden is on defendant to raise the issue of proscribed conduct. Once the issues is raised, the burden then shifts back to party adducing it, to prove that it was obtained in proscribed fashion.

© A. Kuklik. Admissions 84 - Exclusion of admissions influenced by violence and certain other conduct “There must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct.”: Habib v Nationwide News Pty Ltd [2010] NSWCA 34 at [234]. The Court will determine the question (whether admission influenced by violent conduct) on balance of probabilities: s 142. May conduct a voir dire to determine the issue: s 189. But without the jury. Not a discretion - if the Court is satisfied there is proscribed conduct it must reject the evidence.

© A. Kuklik. Admissions R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80]) Zhang on trial for two counts of murder. Interviewed for purpose of taking a witness statement and ascertaining whether he was suitable for witness protection program. During the interview he admitted his guilt. He was interviewed again, this time it was recorded electronically. He accompanied the police to the crime scene and demonstrated what happened on night of the murders. Police then recorded another interview. Section 84 is concerned about voluntariness of admission - if admission not voluntary (because induced by violence e.t.c.), it should not be admitted.

© A. Kuklik. Admissions R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80]) Factors: Offered witness protection, but not in isolation or in return for promise of co-operation – He was offered protection in context of being given only 2 choices: Co-operate; or Be charged with murder. Was told that he would get reduced or no sentence if co-operated. Threat of physical violence – detective said that he would like to hit him in the face. Was told that once the detective left the room, there would be no further opportunity to co-operate.

© A. Kuklik. Admissions R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80]) Once the issue has been raised there are two steps: (i) Whether conduct of detectives was violent/oppressive or constituted a threat of violence/oppression; (ii) Whether the Court is satisfied admission was not influenced by the conduct. Zhang argued that the promise of witness protection, on its own, amounted to oppressive conduct. The Court doubted whether this alone could be oppressive. But looked at other conduct as well: Offered only two alternatives – co-operation or charge. Offered a reduced (or no) sentence in return for his co-operation. Threatened (a detective told him he would like to hit him). Once detectives left the room he would have no further opportunity to co-operate.

© A. Kuklik. Admissions R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80]) The Court concluded that the conduct was designed to oppress the accused. But was the admission influenced by that conduct? The Crown argued that he was emotional at the time - his relationship had just failed – and that is what made him vulnerable and made him confess. The Court accepted that this vulnerability may have played some part in the confession. But s 84 does not require that the oppressive conduct was the sole reason for the admission. A number of factors might have combined to cause the admission to be made. If oppressive conduct is one of them, s 84 applies and evidence is not to be admitted.

© A. Kuklik. Admissions R v Sumpton [2014] NSWSC 1432 Hamill J held at [134] that “the accused was subjected to conduct that can properly be described as ‘oppressive’. It involved the exercise of authority and power in a burdensome, harsh and wrongful manner and imposed on the accused unreasonable and unjust burdens”. Relevant matters included (at [135]) that: “[t]he accused was unlawfully detained for a period of many hours”; “[a]spects of the questioning of the accused at the time of his arrest (‘I want to know why you did it’) and towards the end of the ERISP was unfair and improper in that it assumed his guilt and ridiculed and belittled his answers”; “[t]he implicit suggestion that his termination of the interview was capable of giving rise to an inference that he was guilty was never withdrawn”; “[h]e was denied access to a lawyer after asking for one”;

© A. Kuklik. Admissions R v Sumpton [2014] NSWSC 1432 “[h]e was told that the offence with which he was charged ‘effectively carried life’, that his account didn’t add up and that the detectives were giving him an ‘opportunity’ to talk”; “[h]e was approached to provide further information after he had clearly, and repeatedly, indicated that he sought to exercise his right to silence after more than 2,000 question in the ERISP”; “[h]e was subject to psychological and emotional pressure to change his version of events” and that “[h]e was subject to questioning in a small confined space in circumstances where the designated custody manager was not involved in any meaningful way before, during or after the interview”.

© A. Kuklik. Admissions 85 - Criminal proceedings: reliability of admissions by defendants (1)This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a)to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b)as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. Note: Section 1 has been inserted in response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216

© A. Kuklik. Admissions 85 - Criminal proceedings: reliability of admissions by defendants (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i)the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned.

© A. Kuklik. Admissions 85 - Criminal proceedings: reliability of admissions by defendants Designed to ensure reliability of admissions. Effect: Not admissible unless circumstances in which it was made make it unlikely that the truth of the admission were adversely affected. The Court is to take into account the factors in s 85(3) Again, it will generally be for the defendant to raise an issue that affected truth of admission and prosecution then has to prove on balance of probabilities that those circumstances were unlikely to affect truth of admission. This provision contrasts with s 84 which is concerned with voluntariness rather than reliability.

© A. Kuklik. Admissions Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70]) Kelly made admission to police about half an hour after video- recorded interview had ended. It was not made in response to any police question. It was not video taped. The question was whether it was a "confession or admission" within meaning of s 8(2)(a) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). If it was, it had to be video recorded or there had to be a reasonable explanation as to why a video recording could not be made. The "confession or admission" defined as on made "in the course of official questioning.”

© A. Kuklik. Admissions Kelly v The Queen [2004] HCA 12; 218 (2004) CLR 216 (KOP [9.70]) Although, it concerned a different provision, it was relevant to interpretation of the equivalent phrase in s 85, which at the time provided: (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) in the course of official questioning, or (b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

© A. Kuklik. Admissions Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70]) Gleeson CJ, Hayne and Heydon JJ: Describes history of the issue and provisions - including problems that arose when interviews not recorded but later relied upon in court, and various solutions to the problem: [22] – [40]. When does "official questioning" start and end? – [45] + Kelly was arguing for a broad interpretation of "official questioning.” Primary argument: included any words spoken between person in custody and who is suspected of having committed an offence, and the police officer investigating.

© A. Kuklik. Admissions Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70]) Gleeson CJ, Hayne and Heydon JJ: Problem: gives no weight to the requirement that there be questioning. According to this interpretation, the requirement would apply even if police officer says ‘I’m going to take you to the station to ask you some questions’, and a suspect then volunteers a confession. Kelly’s second argument was, that if the above was too broad - add following limitation: it must be spoken within a reasonable period following conclusion of formal questioning and must seek to touch upon, qualify or modify anything said by the suspect during period of formal questioning. Essentially argued that “In the course of” included anything arising out of or as a result of official questioning. But this does not sit with the language of the Act. Another argued limitation - that it be while defendant is in custody - but statute does not say that.

© A. Kuklik. Admissions Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70]) Gleeson CJ, Hayne and Heydon JJ: Held: the official questioning ended here when detective said ‘We'll conclude the interview.’ No further question was asked that triggered the admission. To treat it as having been made in the course of official questioning would ignore the statutory language. Therefore s 8(2)(a) did not apply - no requirement to record – evidence correctly admitted.

© A. Kuklik. Admissions Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70]) Gleeson CJ, Hayne and Heydon: The Court then considered whether, even if evidence was wrongly admitted, whether a substantial miscarriage of justice had occurred. Kelly said he would have lost chance of being acquitted. The Court dismissed this. At trial Kelly said he did not do it, but did not advance any evidence as to who did, He called no evidence capable of negating inferences arising beyond reasonable doubt from evidence that was before the Court: summarised at KOP, p 339. In all the circumstances admission of the impugned statement can have made no difference to the finding of guilt: ‘there are numerous coincidences operating against the appellant which cannot be explained by postulating his innocence and are only consistent with his guilt beyond a reasonable doubt.’

© A. Kuklik. Admissions Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70]) McHugh and Kirby JJ Separately also dismissed the appeal on the basis that the prosecution’s case was sufficiently cogent without the admission. They thought the admission was inadmissible. McHugh J - the admission was ‘directly connected to the extensive questioning by the police officers that had occurred about an hour earlier’ (although he doubted it was an admission). Therefore the judge should have rejected the admission.

© A. Kuklik. Admissions Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70]) As a result of this judgment s 85(1)(a) was amended to now include broader circumstances (effectively adopts Kelly’s broader proposition): (1)This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a)to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or …

© A. Kuklik. Admissions 85 - Criminal proceedings: reliability of admissions by defendants NB: “Investigating official” is defined in the Dictionary as: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences. Therefore this section does not usually apply to undercover police officers who obtain confessions under orders.

© A. Kuklik. Admissions 189 - The voir dire (1)If the determination of a question whether: (a) evidence should be admitted (whether in the exercise of a discretion or not), or (b) evidence can be used against a person, or (c)a witness is competent or compellable, depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.

© A. Kuklik. Admissions 189 - The voir dire (2) If there is a preliminary question whether: (a)particular evidence is evidence of an admission, or evidence to which section 138 (Discretion to exclude improperly or illegally obtained evidence) applies, or (b)evidence of an admission, or evidence to which section 138 applies, should be admitted, is to be heard and determined in the jury’s absence. (3)In the hearing of a preliminary question about whether a defendant’s admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant.

© A. Kuklik. Admissions R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80]) Dealt with s 85 as well as s 84. Section 85 operates differently to s 84 – its focus is on the reliability of the admission in the circumstances that it was made. Evidence of truth or falsity of admission not to be adduced in voir dire (determination of preliminary question) when determining whether to allow the admission to be admitted. Here Zhang explicitly raised the issue of the truth of the admission – he claimed that he was making things up that were not true. Therefore the truth of the admission can be considered.

© A. Kuklik. Admissions R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80]) If its truth is put into issue then the Court should: First assess the circumstances in which the admission was made (excluding evidence of its veracity); And only after that has been done, deal with the question of its truth or falsity. [54] Here, the Court held that was satisfied that the prosecution had established that the circumstances in which the admission was made (except one) were such were such that it was unlikely that its veracity was affected. The pressure placed on Zhang to confess did not operate adversely on what was said (may have helped). But the offer of assistance if he co-operated could have affected the truth of the confession – encouraged him to falsely confess.

© A. Kuklik. Admissions R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80]) According to Simpson J, this second factor could have been enough to knock it out, but he also looked at the veracity of the admission: Inconsistencies between it and other evidence – suggesting fabrication. Corroborating evidence that suggests that it was truthful. Potentially gaining knowledge of the murder from sources other than the police – i.e. had read news reports and adopted the details in them. Psychiatric evidence. Video of a walk-around where accused willingly answered questions and identified the crime scene in detail. Held that, in the circumstances, notwithstanding the circumstances in which the admission was made, (and despite the above) the reliability of the confession was not affected. He therefore would not reject its admission on the basis of s 85.

© A. Kuklik. Admissions R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80]) He concludes that the veracity of accuracy of the content of the admissions would, if they were otherwise admissible, be a matter for jury determination. Does this contradict his earlier discussion regarding the ability to look at the truth or falsity of the admission in the assessment of s 85?

© A. Kuklik. Admissions R v Moffat (2000) 112 A Crim R 201 (KOP[9.90]) Accused of murder by judge alone. Both accused and deceased had consumed a lot of alcohol, got into an argument, and accused strangled the deceased and hit with a hammer. Appealed on basis that oral admissions and admissions in ERISP should not have been admitted. Court had to determine effect of intoxication on admission: First, at the time of incident, in relation to his awareness of what was occurring and his ability to understand or gauge the significance of the signs which he saw in the deceased, and to fix them in a proper context of time. Then, at the time of making the admission, in electing to speak to the police and being able to recount, in a lucid way, what he had seen or heard during the fight.

© A. Kuklik. Admissions R v Moffat (2000) 112 A Crim R 201 (KOP[9.90]) As to first question, trial found that "confabulation" had been excluded: Unlikely it was invented. Interview showed consistency with medical evidence that appellant had a strong tolerance for alcohol. Absence of signs such as slurred speech. Accounts the appellant gave to neighbours and to detective before the ERISP and subsequently to doctors were all consistent with account in ERISP. (cf: approach in Zhang) On appeal, Wood CJ found this was the only finding reasonably open. As to second question, trial judge found that ERISP was reliable: Evidence of his responsive and lucid answers. Ability to accurately paraphrase certain matters put to him. Corrected mistakes made by police. Sought clarification and disagreed with some matters put to him. Wood CJ could see no error in this either.

© A. Kuklik. Admissions R v McLaughlin (2008) 218 FLR 158 (KOP[9.100]) Accused charged with causing damage to house by setting fire. When police attended he was present and made some admissions. Neighbour saw accused at the scene and testified that she appeared disoriented. Arrested and taken to police watch-house. Examined by doctor. Found her to be co-operative, quiet and suicidal. Medical history of suicide attempts, brain damage and drug dependency. Note heavy use of alcohol and cannabis. Formed opinion that accused was not fit to be interviewed, but did not explain why. Held that section 85 directed to reliability of admissions rather than their voluntariness. Focus is not on actual truth or reliability of the admission - focus is on the impact of the circumstances in which the admission was made on the actual reliability of the admission. But cf: s 189(3) and Zhang.

© A. Kuklik. Admissions R v McLaughlin (2008) 218 FLR 158 (KOP[9.100]) Does not require police impropriety. “Circumstances” (s 85(2)) are not confined to those known to the interrogator. Does it include psychiatric impairment of the accused? Considered previous decision in Munce – (psychiatric problems create real doubt defendant was giving an accurate account of the events - but nothing arising from objective circumstances impact upon truth of admission, s 85 did not allow Ct to reject ERISP). Refers to Odgers - not obvious why circumstances referred to in s 85 do not include vulnerabilities of subject of which police were unaware. Section 85(3) clearly refers to subjective characteristics but does not say that they must be objectively apparent.

© A. Kuklik. Admissions R v McLaughlin (2008) 218 FLR 158 (KOP[9.100]) While psychiatric illnesses not itself sufficient to prove unlikelihood of reliability of an admission, if they are clearly relevant to reliability they should be considered under s 85(2). The weight of authority suggests that personal and psychological vulnerabilities are relevant to whether it is unlikely truth of an admission was adversely affected. Here, her vulnerabilities, together with fact that she appeared to be intoxicated and that she was in a disoriented state after the fire, meant that the circumstances were such as to make it unlikely the truth was not adversely affected - evidence of admission should have been excluded.

© A. Kuklik. Admissions R v Singh [1999] ACTSC 27 Subject of Helen Garner’s book: ‘Joe Cinque’s Consolation’ ANU student, Anu Sing charged with murdering her boyfriend after dinner party by knocking his out with ‘roofie’ and then injecting him with lethal dose of heroin. Later she called 000. Ambulance and police came. Whilst the body was still being examined upstairs, she talked to police and made admissions (without caution) to police constable. At trial, defence argued that they were unreliable and therefore inadmissible – s 85. Also argued that failure to caution meant that they were inadmissible.

© A. Kuklik. Admissions R v Singh [1999] ACTSC 27 The conversation commenced at approximately 1.42 pm and was relatively short. The victim was not formally pronounced extinct by a legally qualified medical practitioner until 1.50 pm, but the paramedics who had attended the scene had confirmed that Mr Cinque was dead. She called 000 emergency number at 12.10 pm and 12.14 pm and the tape recordings of those calls revealed that she had been extremely distressed. The paramedics gave further evidence of her distressed and hysterical conduct following their arrival. They noted that her voice was raised and distressed, that she had attempted to kiss Mr Cinque's body, had pulled at his face, attempted to embrace him and that after the police had arrived and ordered her to leave the room she had behaved in a frantic manner. It had required three men to keep her out of the bedroom and she had begun darting from place to place and flinging herself in their direction. A fire brigade officer who had been present at similar incidents said that he had not seen such agitated behaviour before. There was other evidence of hysterical and confused behaviour prior to the commencement of the conversation.

© A. Kuklik. Admissions R v Singh [1999] ACTSC 27 Not clear whether the conversation with Constable Hains was permitted to run its course or whether it was brought to a premature end. However, it is clear that Ms Singh stood up and began to pace around the room again before suddenly attempting to run upstairs. She was brought back down by another officer but began to twist her body and resist efforts to remove her from the house. When placed in the police car a further conversation was attempted but after answering one question she again appeared to become hysterical. She subsequently attempted to fling herself out of the vehicle. Evidence was given by a psychologist, Dr Ken Byrne, to the effect that the accused had a long-standing psychological condition and at the time of the incident was suffering from depression and a severe borderline personality disorder. He expressed the view that any statement she may have made to the police may have been unreliable. Crown argued that that the opinion expressed by Dr Byrne should be accorded little weight because of a number of factors including the extent to which it was reliant upon a history recounted to him by the accused and, in particular, the fact that the results of consecutive Minnesota Multiphasic Personality Inventory (MMPI) tests revealed a high score on the “fake” scale.

© A. Kuklik. Admissions R v Singh [1999] ACTSC 27 Held – unable to be satisfied that unlikely that truth was adversely affected. “It seems to me that the evidence of Dr Byrne must be considered in the context of the other evidence given at the trial. There is an abundance of evidence to the effect that in a period of some months leading up to the death of Mr Cinque the accused had behaved in an irrational manner and at times had expressed delusional beliefs. Indeed, one suggested motive for the offences which the Crown alleges she committed was anger arising from a delusion that she was suffering from a terminal illness brought about by the ingestion of Ipecac syrup she had taken at Mr Cinque's suggestion. In addition, as I have already mentioned, the evidence reveals that she had been in an hysterical state immediately before and immediately after the conversation in question. In these circumstances, I find myself in the same position as that expressed by Dr Byrne: I am simply unable to say whether the statements made by the accused to the police would have been reliable.”

© A. Kuklik. Admissions R v Singh [1999] ACTSC 27 Also failed to caution her (which was required under s 23F of Cth Crimes Act 1914). This raised s 138(1) issue of whether the admission was improperly obtained. The judge looked at some s 138(3) factors: Contravention was not reckless or deliberate, because police genuinely though that caution was not yet required. High probative value? But unreliable. Section 138 not satisfied. Also failed to record the admission – s 23V

© A. Kuklik. Admissions R v Singh [1999] ACTSC 27 Also based on old s 85 (See Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70])), and here was held to have made the admissions in “the course of official questioning” – there was not discussion of this issue.

© A. Kuklik. Admissions 138 Exclusion of improperly or illegally obtained evidence (1)Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. –

© A. Kuklik. Admissions 138 - Exclusion of improperly or illegally obtained evidence (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

© A. Kuklik. Admissions 138 - Exclusion of improperly or illegally obtained evidence (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account (a)the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

© A. Kuklik. Admissions 139 - Cautioning of persons (1)For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a)the person was under arrest for an offence at the time, and (b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c)before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a)the questioning was conducted by an investigating official who did not have the power to arrest the person, and

© A. Kuklik. Admissions 139 - Cautioning of persons (b)the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and (c)the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately. (4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.

© A. Kuklik. Admissions 139 - Cautioning of persons (5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if: (a)the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or (b)the official would not allow the person to leave if the person wished to do so, or (c)the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so. (6) A person is not treated as being under arrest only because of subsection (5) if: (a)the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or (b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

© A. Kuklik. Admissions 139 - Cautioning of persons The caution is: ‘You do not have to say or do anything, but anything that you do say or do may be used in evidence.’ 139(3) requires that it be given in or translated into a language in which the person is able to communicate with "reasonable fluency", but need not be given in writing unless they cannot hear properly. The caution will not have been properly administered if the circumstances are such that the officer knows or ought to know that the caution has not been understood.

© A. Kuklik. Admissions R v Helmhout (2001) 125 Crim A R 257 (KOP [9.120]) Helmhout was convicted of murder. On appeal, argued that a confession made in police custody should not have been admitted. Helmhout was indigenous and therefore subject to (and had benefit of) regulations regarding detention and questioning of “vulnerable” people. These regulations required that a representative of the Aboriginal Legal Service to be contacted immediately. The police failed to do so before the interview and the confession was obtained (2 hours after his arrest and arrival at the station). At trial, the custody manager gave evidence to the effect that he knew he was obliged to notify the ALS, but could not recall whether he did in fact do so in relation to Helmhout. After considering s 138, the Judge allowed ERISP anyway.

© A. Kuklik. Admissions R v Helmhout (2001) 125 Crim A R 257 (KOP [9.120]) Hulme J “It is not necessary for the purposes of this appeal to attempt to define exhaustively the meaning or operation of the term "reckless" in paragraph (e) of s138(3). In the context of "improperly or in contravention of an Australian law" the concept "reckless" must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a "don't care" attitude generally… The mere failure to comply with clause 28 on one occasion cannot, without more, demonstrate these matters Court found that it was open for the judge to find that, in the chaotic circumstances of the police station at the time, the sergeant’s failure to comply was not deliberate or reckless and he had merely overlooked the requirement.

© A. Kuklik. Admissions R v Helmhout (2001) 125 Crim A R 257 (KOP [9.120]) Hulme J Found that a judge should when considering s 138(3)(d), direct attention to the defendant’s personal characteristics. The judge’s failure to do so resulted in her discretion miscarrying. However, with regard to their nature and weight, it would have made no difference favourable to the defendant. If the regulation had been complied with, the confession would not have been forthcoming. However, even though the ERISP was a product of contravention, on balance it was not unfair to admit it.

© A. Kuklik. Admissions 86 - Exclusion of records of oral questioning (1)This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official. (2)A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response. (3)The acknowledgement must be made by signing, initialling or otherwise marking the document. (4)In this section: "document" does not include: (a) a sound recording, or a transcript of a sound recording, or (b) a recording of visual images and sounds, or a transcript of the sounds so recorded.

© A. Kuklik. Admissions 281 - Admissions by suspects (Criminal Procedure Act 1986 (NSW)) (1)This section applies to an admission: (a)that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c)that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless:

© A. Kuklik. Admissions 281 - Admissions by suspects (a)there is available to the court: (i)a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).

© A. Kuklik. Admissions (4) In this section: "investigating official" means: (a)a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b)a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. (c)"official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. "reasonable excuse" includes: (a)a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

© A. Kuklik. Admissions 87 - Admissions made with authority (1)For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b)when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority, or (c)the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2)For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove: (a) that the person had authority to make statements on behalf of another person in relation to a matter, or (b) that the person was an employee of another person or had authority otherwise to act for another person, or (c) the scope of the person’s employment or authority

© A. Kuklik. Admissions 88 - Proof of admissions For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.

© A. Kuklik. Admissions 90 - Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a)the evidence is adduced by the prosecution, and (b)having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Note : Part 3.11 contains other exclusionary discretions that are applicable to admissions.

© A. Kuklik. Admissions Foster v The Queen (1993) 113 ALR 1 (KOP [9.140]) Common law case Accused was charged and convicted with maliciously setting fire to a local public school. The prosecution case rested on a 7 line confession which he signed when in custody. In voir dire, he said that the confession was extracted by threats. The judge favoured the police evidence that he had signed it voluntarily. On appeal the High Court held that the common law position was that when a voluntary confession is procured through unlawful police conduct, the judge has discretion to exclude that evidence on the grounds it would be: unfair to the accused. contrary to public policy.

© A. Kuklik. Admissions Foster v The Queen (1993) 113 ALR 1 (KOP [9.140]) Common law case The factors pointing to unfairness to the accused, and therefore against admissibility of the confession were: Foster was not allowed to contact a lawyer and could not decline the interview. Placed in situation of special vulnerability of fabrication. Semi-illiterate. Had no opportunity to withdraw. Threat was made to his family. Interviews were not recorded in anyway.

© A. Kuklik. Admissions Foster v The Queen (1993) 113 ALR 1 (KOP [9.140]) Common law case Further factors weighing against admission: Serious and reckless infringement of his rights by police. Arrested for the purpose of questioning and in an environment where he could not withdraw. When his mother arrived, he was not told she was there, and she had to wait. It was questionable whether the admissions made by Foster were voluntary in the sense of being exercised by free will. The Court would also have excluded the confession on public policy grounds given the serious unlawful conduct of the police. Shouldn’t have been admitted. Conviction quashed.

© A. Kuklik. Admissions R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150]) Common law in the context of the Evidence Act Swaffield was convicted of 2 break and enter offences and setting fire to Leichhardt Rowing Club. Declined to be formally interviewed by police. The police offered no direct evidence against him at the committal hearing. Later Swaffield became the target of an undercover police drug operation. During one of the conversations with an undercover officer, Swaffield made admissions of his involvement in the fire at the Rowing Club. Fresh charges were laid and the trial began, during which the defence argued that the evidence of his conversation with the undercover policeman should not be admitted, on the ground that the failure of the officer to caution Swaffield had led to unfairness. The trial judge declined to exercise his discretion to exclude the conversations and Swaffield was convicted. On appeal to the Court of Appeal, the conviction was quashed. The Crown appealed to the High Court.

© A. Kuklik. Admissions R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150]) Common law in the context of the Evidence Act Pavic was interviewed as a part of a murder investigation. On advice he declined to answer any questions when interviewed by the police. Later on, Pavic’s friend, Clancy, was wired and spoke to Pavic, during which conversation Pavic made admissions of his involvement in the killing. At the trial, the defence submitted that the evidence of his conversation with his friend should not be admitted on the grounds of unfairness. The trial judge declined and the evidence played a substantial part in the case against Pavic. He was convicted of murder and his appeal to the Court of Appeal was dismissed. He appealed to the High Court.

© A. Kuklik. Admissions R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150]) Common law in the context of the Evidence Act Toohey, Guadron Gummow JJ: There are 4 bases for excluding a confession [50] - [52]: If it is not voluntary (not contended here) If it is unfair to the accused to admit. If it is against public policy. If the probative value is less than its prejudicial impact. The term unfairness lacks precision; it involves an evaluation of the circumstances. It is not whether the police acted unfairly, but whether it would be unfair to the defendant to use the statement against her – it relates to the right of the defendant to a fair trial: The unfairness discretion overlaps with the discretion to reject evidence which is more prejudicial than probative

© A. Kuklik. Admissions R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150]) Common law in the context of the Evidence Act Toohey, Guadron Gummow JJ: The unfairness discretion overlaps with the discretion to reject evidence which is more prejudicial than probative – each looking at improper conviction Reliability is a touchstone to unfairness but not the sole touchstone. Once considerations other than reliability are introduced, the line between unfairness and policy become blurred. Unfairness is a vague concept. Therefore appellate review of the discretion can be difficult.

© A. Kuklik. Admissions R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150]) Common law in the context of the Evidence Act The CJ of the Court below suggested that the common law approach to admissibility of confessions ought to be one first on the question of voluntariness, next an exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards [69]. Toohey,Gaudron and Gummow agree. BUT, it is often not possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues. will often overlap with reliability and voluntariness and public policy considerations. Reliability is an important aspect of the unfairness discretion, but it is not exclusive.

© A. Kuklik. Admissions R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150]) Swaffield: “the use of a subterfuge to obtain a statement as likely to be in violation of the choice whether or not to speak but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude. In the circumstances of this case, the admissions were elicited by an undercover police officer, in clear breach of Swaffield's right to choose whether or not to speak. The Court of Appeal was right in its conclusion and this appeal should be dismissed.” [97] – [98]. Pavic: “…argued that he was misled by Clancy into making the admissions he did. The trial judge approached the exercise of his discretion on that footing and said: "Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence." In all the circumstances there is no sufficient reason to interfere with the trial judge's refusal to exclude the evidence of the conversation. This appeal should also be dismissed” [102] – [103].

© A. Kuklik. Admissions Em v the Queen [2007] HCA 46 (KOP [9.160]) Evidence Act case Appellant cautioned in relation to murder, asserted right to silence. Next month invited by police to a park where he was asked questions. Was told that he did not have to answer, but not told that if he said something, it could be used in evidence. Police were covertly taping the conversation. The appellant believed that unless it was taped, it could not be used. The police knew of this belief although they did not suggest it. Appellant made a number of admissions. Judge excluded some admissions (after police said that anything said could not be used against him), but allowed earlier admissions. Appellant did not rely upon ss 138 or 139. Argued that it was unfair because police knew that he believed that nothing could be used: s 90.

© A. Kuklik. Admissions Em v the Queen [2007] HCA 46 (KOP [9.160]) Was it unfair: s 90? High Court said no, but for different reasons: Gleeson CJ and Heydon J: Appellant accepted that being secretly recorded did not alone make it unfair to admit the statement. This recording was permitted by the Listening Devices Act. The appellant also argued that it was unfair because he believed that the conversation could not be used in evidence against him. But the latter assumption was integrally connected to the former and to believe that it wasn’t unfair to be recorded, but that it was unfair to use an admission that the appellant thought could not be used was illogical. “At one point the appellant conceded that, as at common law, the reliability of evidence was a factor affecting the fairness of its use… The appellant's [original] concession was correct. It is supported by common law authority. Indeed in R v Swaffield Toohey, Gaudron and Gummow JJ said: "Unreliability is an important aspect of the unfairness discretion but it is not exclusive.” [72] – [73]

© A. Kuklik. Admissions Em v the Queen [2007] HCA 46 (KOP [9.160]) Gummow and Hayne JJ: The question requires examination of the circumstances of the making of the admission and whether they would effect the fairness of use of the evidence at trial (not fairness at the time at which the representation was made). Section 90 engages as a ‘safety net’ provision after other provisions have bee exhausted:[109]. Consequently, factors considered for other exclusions should not be considered when applying s 90, as it is essentially the last cab in the rank. The operation of s 90 is affected by the operation of the other sections in the Act and should not engage with the factors engaged with those sections.

© A. Kuklik. Admissions Em v the Queen [2007] HCA 46 (KOP [9.160]) Gummow and Hayne JJ: For example reliability should not be a factor, as that is dealt with in s 85. At common law these were a factor in ‘unfairness’, but under the UEL, consideration of reliability can have no part to play in the operation of s 90 (unless the representation was not made during formal questioning). Further, the appellant argued that the police had engaged ‘tricks’ and ‘trickery’, but conceded that ss 138 and 139 were not engaged. ‘The very nature of the enquiries required under s 138 denies that the application of s 90 can be approached from a premise that attaches weight to an assertion that what was done by police was “improper.”’ us denied the application of s 90. The enquiries in s 138 denied the operation of s 90.

© A. Kuklik. Admissions Em v the Queen [2007] HCA 46 (KOP [9.160]) Gummow and Hayne JJ: Other exclusion provisions to consider (here it was accepted by the defence that none were engaged): Section 84 Section 85 Section 86 Section 137 Sections 138 and 139 Section 281 of the Criminal Procedure Act Therefore s 90 is not to be considered where other sections could be engaged. In other words the matters dealt with by other sections – voluntariness, reliability are not matters to be considered when assessing “fairness” under s 90 (but cf Gleeson and Heydon). It appears that the issue is not that the other sections have been tested unsuccessfully, but the considerations the subject of those sections, are not applicable here.

© A. Kuklik. Admissions Em v the Queen [2007] HCA 46 (KOP [9.160]) Kirby Focused on the fact that only half of the caution was given in the park. This was insufficient. The police engaged in a course of conduct deliberately aimed to deceive the appellant into believing that he was having an ‘off the record’ conversation. Compared this case to Swaffield. Even if the police conduct was not illegal, it was improper.

© A. Kuklik. Admissions Em v the Queen [2007] HCA 46 (KOP [9.160]) Cases Since: R v GAC [2007] NSWCCA 315, it was held: “In relation to s 90 of the Evidence Act the question of discretion or evaluation has been agitated, without binding result, in Em v The Queen [2007] HCA 46, see at [55], [182], [198]-[199]. The last word may not have been written.” [77] Riley v R [2011] NSWCCA 238, it was held: “It has been authoritatively determined that the "reliability of evidence (is) a factor affecting the fairness of [the admission's] use"; Em v The Queen [2007] HCA 46 ; (2007) 232 CLR 67 at [72].” [155] !!!! Bin Sulaeman v R [2013] NSWCCA 283 “It has been described as a "final or safety net provision" available after the more specific exclusionary provisions of the Evidence Act have been considered and applied: Em v The Queen [2007] HCA 46 at [109], per Gummow and Hayne JJ.”

© A. Kuklik. Admissions Em v the Queen [2007] HCA 46 (KOP [9.160]) Cases Since: R v Cooney [2013] NSWCCA 312, it was held: “Gummow and Hayne JJ in Em were of the view that s 90 was not available where there was illegal or improper conduct by police: see [109]. That was a point not determined by the other members of the majority, Gleeson CJ and Heydon J. In my view, at least in its operation to the present facts, it is not possible to rely exclusively on s 90, thereby sidestepping s 138. Section 138 was squarely directed to the facts as found by the primary judge. It is specific. It imposes a different test from that in s 90, including a balancing process, and requires regard to be had to the factors set out in s 138(3). Central to the reasons of the primary judge was the contravention of s 127 and what followed thereafter. That is a consideration which is highly relevant to s 138 and regard to those matters through the prism of s 90 by the primary judge in my view amounts to error which engages House v The King review.” [8]

© A. Kuklik. Admissions Em v the Queen [2007] HCA 46 (KOP [9.160]) Given the split in the High Court and inconsistent treatment of the decision subsequently, is there a clear position as to what unfairness means in relation to s 90?

© A. Kuklik. Admissions Em v the Queen [2007] HCA 46 (KOP [9.160]) Also since then Uniform Evidence Law Bulletin (50) June 2015: “In Em v The Queen (2007) 232 CLR 67; 81 ALJR 1896; [2007] HCA 46, the High Court (Gleeson CJ and Heydon J, Gummow and Hayne JJ, Kirby J dissenting) rejected an argument that admissions made by the appellant should have been excluded under this provision in circumstances where the suspect believed that anything he said could not be used in evidence and the police, knowing this, had given the first part of the caution (“you have a right not to say or do anything”) but deliberately left out the second part of the caution (“anything you say or do may be used in evidence”). A case that may be contrasted with Em is R v Simmons (No 3) [2015] NSWSC 189. Hamill J found that the police led an arrested person (who was initially properly cautioned) to believe that “what he said would not be recorded and that it would not be used against him” (at [124]). Given that the defendant exercised his right to silence when interviewed by police electronically, it was held to be unfair to admit evidence of what he said after he was told that what he said would be “off the record” (at [151]).”

© A. Kuklik. Admissions The right to silence and admissions How does the right to silence interact with the law relating to admissions? Can silence constitute and admission? Sections 89, 89A and Petty and Maiden v The Queen (1991) 173 CLR 95 At common law: There is a right to silence. No inference can be drawn against an accused person by his or her failure to answer questions or provide information (to a person in authority, relating to the occurence of an offence, the indentity of the participants and the roles which they played). It should not be suggested that, either by evidence led by the Crown or by questions asked or comments made by the judge or the Crown that an accused’s exercise of the right to silence may provide a basis for inferring a consciousness of guilt.

© A. Kuklik. Admissions The right to silence and admissions How does the right to silence interact with the law relating to admissions? Can silence constitute and admission? Sections 89, 89A and Petty and Maiden v The Queen (1991) 173 CLR 95 At common law: Nor can it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. But What if the defendant has posited one defence or claim and then changed to a new one?

© A. Kuklik. Admissions Petty and Maiden v The Queen (1991) 173 CLR 95 (KOP [9.180]) Petty and Maiden convicted for Murder of White. In their statements Maiden blamed Petty. Petty said that it was accidental. A third party testified at the committal that Maiden had told him that they had planned to kill White and that they did it together. At trial, they both claimed that the death was accidental. Cawley (a witness) was cross-examined by the defence to suggest that Maiden’s conversation was not as he had described it, but that what Maiden has said was in keeping with the argument that it was an accident (and which was consistent with Petty’s ROI). The prosecution led evidence from Cawley witness that this idea had never been put to him at the committal (XXM during committal just suggested that Cawley was not telling the truth and did not suggest a different version of the conversation.

© A. Kuklik. Admissions Petty and Maiden v The Queen (1991) 173 CLR 95 (KOP [9.180]) The judge directed the jury to not draw any inference of guilt from Maiden’s failure to raise the accident explanation at the committal. But they were allowed to take it into account when they assessed weight. Held: A person who believes that he or she is suspected of having committed an offence is entitled to remain silent when questioned or asked to supply information. If the accused raises a ‘late defence’ the Court cannot allow the jury to draw an adverse inference about this defence from the fact that it had not been previously raised. However, here Maiden had not been silent about the killing. His initial position was that they had agreed to kill White, and Petty had done so. He did not withdraw or correct this prior to trial. This was inconsistent with his defence at trial: that he had killed White accidentally in self-defence.

© A. Kuklik. Admissions Petty and Maiden v The Queen (1991) 173 CLR 95 (KOP [9.180]) In the circumstances, evidence of his earlier allegation against Petty was admissible against Maiden, as it cast doubt on the genuineness of his defence. Evidence of Maiden’s failure to withdraw the assertion was also acceptable, and as it was first raised in cross-examination of Crawley, it can be addressed in re-examination that such a suggestion had never been put to him at the committal.

© A. Kuklik. Admissions 89 - Evidence of silence generally (1)Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused: (a) to answer one or more questions, or (b) to respond to a representation, put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. (2) Evidence of that kind is not admissible if it can only be used to draw such an inference. (3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding. (4) In this section: "inference" includes: (a) an inference of consciousness of guilt, or (b) an inference relevant to a party’s credibility.

© A. Kuklik. Admissions 89A - Evidence of silence in criminal proceedings for serious indictable offences (1)In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact: (a)that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and (b) that is relied on in his or her defence in that proceeding. (2) Subsection (1) does not apply unless: (a)a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and (b) the special caution was given before the failure or refusal to mention the fact, and ….

© A. Kuklik. Admissions 89A - Evidence of silence in criminal proceedings for serious indictable offences (c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and (d) the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions. (3) It is not necessary that a particular form of words be used in giving a special caution. (4) An investigating official must not give a special caution to a person being questioned in relation to an offence unless satisfied that the offence is a serious indictable offence. (5) This section does not apply: (a)to a defendant who, at the time of the official questioning, is under 18 years of age or is incapable of understanding the general nature and effect of a special caution, or ….

© A. Kuklik. Admissions 89A - Evidence of silence in criminal proceedings for serious indictable offences … (b) if evidence of the failure or refusal to mention the fact is the only evidence that the defendant is guilty of the serious indictable offence. (6) The provisions of this section are in addition to any other provisions relating to a person being cautioned before being investigated for an offence that the person does not have to say or do anything. The special caution may be given after or in conjunction with that caution. Note : See section 139 of this Act and section 122 of the Law Enforcement (Powers and Responsibilities) Act 2002. (7) Nothing in this section precludes the drawing of any inference from evidence of silence that could properly be drawn apart from this section. (8) The giving of a special caution in accordance with this section in relation to a serious indictable offence does not of itself make evidence obtained after the giving of the special caution inadmissible in proceedings for any other offence (whether or not a serious indictable offence).

© A. Kuklik. Admissions Section 89A An unfavourable inference cannot be drawn unless: (a)the proceedings are criminal proceedings for a "serious indictable offence" (s 21 of the Interpretation Act 1987 defines "serious indictable offence" to mean an "indictable offence that is punishable by imprisonment for life or for a term of 5 years or more" and "indictable offence" to mean "an offence for which proceedings may be taken on indictment, whether or not proceedings for the offence may also be taken otherwise than on indictment"); and (b)the defendant was undergoing "official questioning" (defined to mean "questions put to the defendant by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of the serious indictable offence") in relation to the serious indictable offence (the term "investigating official" is defined in the Dictionary to this Act); and (c)the defendant had been given a "special caution" by an investigating official ("to the effect that the person does not have to say or do anything, but it may harm the person’s defence if the person does not mention when questioned something the person later relies on in court, and (b) anything the person does say or do may be used in evidence"); and

© A. Kuklik. Admissions Section 89A An unfavourable inference cannot be drawn unless: (d)the investigating official who gave the special caution, at the time it was given, "had reasonable cause to suspect that the defendant had committed the serious indictable offence" (in respect of which the defendant is being prosecuted) and was "satisfied" that that offence was "a serious indictable offence"; and (e)the special caution "was given in the presence of an Australian legal practitioner who was acting for the defendant at that time"; and (f)prior to the relevant silence (that is, "failure or refusal to mention" a fact) the defendant was "allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions"; and (g)the defendant "failed or refused to mention a fact … that is relied on in his or her defence" in the criminal proceedings for the serious indictable offence; and (h)the defendant "could reasonably have been expected to mention" that fact "in the circumstances existing at the time"; and

© A. Kuklik. Admissions Section 89A An unfavourable inference cannot be drawn unless: (i)the defendant was not, at the time of the official questioning, under 18 years of age; and (j)the defendant was not, at the time of the official questioning, "incapable of understanding the general nature and effect of a special caution"; and (k)the evidence of silence is not the only evidence that the defendant is guilty of the serious indictable offence.

© A. Kuklik. Admissions Section 89A In August 2012, NSW Premier Barry O’Farrell announced that the right to silence laws must be ‘toughened’ so that the ‘scales of justice will be tilted towards common sense’ (NSW Premier, Media Release, 14 August 2012). It follows several high profile cases in which defendants raised evidence at trial which had not been mentioned in their police record of interview. The Evidence Amendment (Evidence of Silence) Bill 2012 (‘the Bill’) was released for comment by the Department of Attorney-General and Justice on 12 September 2012. The Bill inserts a new s 89A into the Evidence Act 1995 (NSW), which alters the principle that an accused has the right to remain silent when being questioned by authorities. The new section allows, in proceedings for serious indictable offences, an ‘unfavourable inference’ to be drawn against an accused who fails to mention facts when being questioned by police that: the defendant could reasonably have been expected to mention in the circumstances existing at the time, and are subsequently relied on by the defence in the proceeding (s 89A(1)).

© A. Kuklik. Admissions Persons under 18 years of age and those with a cognitive impairment will be exempt from an unfavourable inference being drawn from their silence. Also, an unfavourable inference cannot be draw unless a defendant receives a supplementary caution, and was allowed the ‘opportunity’ to consult a lawyer (s 89A(2)). The ‘defendant’s means’ and ‘the circumstances’ will be taken into account in determining whether a defendant was allowed an opportunity to consult a lawyer (s 89A(7)), although there is no requirement that the ‘opportunity’ be facilitated by the state. The practical operation of this section may be impeded by the fact that 24-hour legal advice is not available in most NSW regions outside of Sydney, and that legal aid does not have the capacity to provide 24-hour advice. The Attorney-General Greg Smith has suggested a ‘telephone advice line’ to comply with the provision. Such a suggestion appears inadequate where lawyers are unlikely to be fully instructed about the facts on which charges have been brought at the time of giving legal advice to an accused. While the government claims the Bill reflects changes that were enacted in the United Kingdom in 1994, the UK law only applies after legal advice has been provided free to all suspects; further, there is no evidence that the UK changes achieved any measurable outcomes for prosecutors.

© A. Kuklik. Admissions Numerous academics, lawyers and advocacy groups oppose both the Bill and the inadequate consultation period. They highlight that the Bill undermines the right to silence and the presumption of innocence, that silence may be consistent with innocence, and that the Bill is inconsistent with other Australian jurisdictions, international human rights covenants and contrary to the findings of the NSW Law Reform Commission. According to the President of the Law Society of NSW, Justin Dowd, ‘The people it will affect most are those that are charged for the first time, those who are nervous or panicked, those who have a disability, language difficulties or other disadvantages.’ In any of those circumstances, is it fair (or good policy) that you will effectively be required to make a statement, or face the assertion in court later that you made it all up? ELYSE METHVEN (2012) 37(4) AltLJ 286

© A. Kuklik. Admissions Jury Directions Act 2013 (Vic) – s 25 Mandatory direction on use of evidence of incriminating conduct (1)If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that— (a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that— (i) the conduct occurred; and (ii) the only reasonable explanation of the conduct is that the accused held that belief; and (b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt. (2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.

© A. Kuklik. Admissions Problem: Janice is charged with theft of a bottle of rum from a Sydney bottle shop. She was followed out of the store by the owner. When he approached her, she ran. He chased her and she pulled a bottle from her coat and threw it against a wall where it smashed. The store owner caught up with her and said, ‘you stole that bottle of rum didn't you?’ She said nothing. The police came, took a statement from the store owner, and arrested Janice. She was taken to police headquarters where she was cautioned and interviewed by Detective Sergeant Smith. The following exchange took place: Smith: You deliberately took the rum without paying for it didn't you. Janice: You think what you like, that doesn't prove a thing. Janice refused to answer any further questions. At trial she elects not to testify in her own defence. Can any admissions be imputed to Janice?

© A. Kuklik. Admissions Problem: Constable West is a prosecution witness in the trial of D for murder of V, a known drug dealer whose bullet-pierced body was found next to a gun and a bag containing a large quantity of assorted illegal drugs and over $1,000 in cash. The prosecution alleges the murder was a drug deal gone wrong. West testifies he was on foot patrol in an area of Sydney where there had recently been a high level of drug-related violence. West says that he heard shots nearby and soon after; about 50 m away, D came stumbling out of a side alley from the direction of the shots. D was wearing a white t-shirt that was apparently covered in blood. West says his first thought was that D had been shot, but then D started laughing insanely, and West then thought that D was not physically injured but was as 'high as a kite, probably on PCP'. Over defence objections, West testifies that as he began to approach D, D continued laughing and shouting, ‘I killed the bastard. I killed the bastard'. ln cross-examination West says that he did have his digital audio recorder with him but did not think to turn it on. Other evidence includes D's blood tests showing a high dose of PCB and the blood on D's t-shirt matching V's blood. The defence is that D stumbled upon V soon after he had been shot. Was the trial judge correct to overrule defence objections to the evidence?

© A. Kuklik. LAW OF EVIDENCE LEC – 2016 Winter Week 8 Professor Elisabeth Peden Miiko Kumar Alex Kuklik.

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© A. Kuklik. LAW OF EVIDENCE LEC – 2016 Winter Week 8 Professor Elisabeth Peden Miiko Kumar Alex Kuklik.

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